The appellant filed the Notice of Motion dated 11.7.24 seeking that :
1. Spent
2. The Pending hearing and determination of this application , the Honourable Court be pleased to stay the release of the decretal sum deposited in court to the respondent in Kisii CMCC no. E683 of 2021 .
The application is based on the grounds that the respondent filed the suit in the lower court seeking damages for injuries allegedly sustained in a road traffic accident on 31.8.20 . Also that he relied on treatment notes from Kisii County referral hospital dated 31.8.20 which formed basis of the p3 form and medical report by Dr Daniel Omaiyo Nyameino. That the matter was fast tracked and by the time the insurer of the appellant was done with their investigations judgment had already been delivered against him . further that the orders sought will assist the court to arrive at a just determination of this appeal . That the applicant will have an opportunity to challenge that which he did not challenge during trial and the he will be prejudiced unless the said orders are granted
The application is supported by the annexed affidavit of Odek Wilson a legal officer of Britam Insurance company Limited which was the Insurer of the applicant at the material time .he deponed that the respondent produced treatment notes allegedly from Kisii county and referral Hospital and dated 31.8.20 which formed the basis of the P3 and medical report . Also that they investigated the accident and got new evidence to the effect that the respondent was never treated at the said facility on 31.8.20 as per the letter dated 6.11.23 issued by Kisii County referral hospital . he produced the investigation report by Parity Assessors & Consultants Limited which contains the plaint and bundle of documents produced by the respondent and the letter from Kisii County referral hospital and medical report by Dr Obondi . Exhibit ‘’OW’’
The application was served upon the respondent and the same is opposed vide the replying affidavit sworn by the respondent on 17.7.24. She deponed that the application is incurably defective ,bad in law , incompetent and out rightly an abuse of the process of the court also that she is entitled to the fruit of the judgment being a successful litigant in the primary suit as per copy of judgment EKM -1 and that the applicant later appealed from the said judgment and the appeal was heard and dismissed as per copy of judgment in the appeal EKM -2 . Further that no appeal was filed against the said High court judgment and that the applicant refused to sign a consent for release of ½ of the decretal sum deposited in a joint interest earning account in the names of the firms of both counsel on record court as security pending appeal . She was forced to file an application for release of the said monies which application was heard in the lower court and allowed . She told this court that the applicant did not plead the alleged fraud in the lower and in he appeal and Thus it cannot be pleaded at this stage. She prayed for dismissal of the application.
The applicant filed a further affidavit dated 23.7.24 in which he deponed that the new evidence was found upon the hearing and determination of the appeal and the primary suit . also the issues raised as of great public importance and weighty . he sought a chance to be heard on the new issues.
Mr Wafula for the applicant submitted that they are not challenging the validity of the judgment on record but that they have new evidence that deceased did not die as a result of the accident herein but in a drinking spree. He urged the court to come to the aid of the applicant and not to sanction the insurance fraud Also that there is overwhelming evidence that the cause of action does not exist. Counsel cited the case of Dian Management Ltd vs County Government of Mombasa where it was held that a title deed obtained fraudulently cannot stand . Also Petition no. 1of 2012 Raila Odinga vs IEBC where it was held that a procees is just as important as the outcome and that where it is tainted then the whole process should be annulled Counsel for the respondent submitted that the applicant had the said ‘’new ‘’ information by 8.9. 23 which is the date of the investigation report before the appeal was heard and determined and that the applicant is out to delay release of the decretal sum whose part has been paid to the respondent. Also that the ought to have applied for leave to put in additional evidence under Order 42 Rule 7 of the Civil Procedure Rules . further that the issue for determination in the appeal is whether the monies should be released or not and that there is no prayer for re-opening of the lower court case.
In reply the applicant's counsel submitted that they made the part payment in good faith before the fraud was discovered .
I have carefully considered the application, the reply and the submissions . This is an application or stay of execution pending appeal .
On tthe threshold for stay pending appeal, Order 42 Rule 6 of the Civil Procedure Rules, 2010 provides as follows: -
Stay in case of appeal
[1] No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court to have such order set aside.
[2] No order for stay of execution shall be made under sub rule [1] unless-
[a] the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
[b] such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
[3] Notwithstanding anything contained in sub rule [2], the court shall have power without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
[4] For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
[5] An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
[6] Notwithstanding anything contained in sub rule [1] of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
On whether the application has been filed without delay, the applicant said they discovered fraud on the part of the respondent after the judgment of the High court in the appeal . The appeal was filed on 10.7 . 2024 against the ruling dated 13.6.24 There was thus no delay in filing the application. The appeal was thus filed timeously.
On the issue of security, it is not denied that a half of the decretal sum is held in a joint interest-earning account in the joint names of both firms of advocates on record . Security is therefore not in issue.
On whether the appeal will be rendered nugatory , the applicant said the appeal will be rendered nugatory if the orders are not granted but this was refuted by the respondent who said that the applicant is out to deny him enjoyment of the fruits of his judgment. Also that the applicant has already paid ½ of the decretal sum to him and the other half is in the joint interest earning account in the names of both counsel on record . The respondent says that there is no basis to grant the prayers sought in the instant application as no prayer for adducing additional evidence was made in the lower court and yet it is the basis of the appeal .
In the case. RWW v EKW [2019] eKLR, the court considered the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
The applicant has a right to be heard while the respondent has a right to enjoy the fruits of his judgment. The substratum of the appeal herein is that the learned trial magistrate denied the applicant the right to adduce additional evidence. I have perused the lower court file and I note that the applicant did not seek to adduce ‘’ new ‘’additional evidence under order 42 Rule 7 of the Civil procedure Rules rule as rightly submitted by counsel for respondent but filed grounds of opposition to the application against release the funds. The applicant has also paid half of the decree sum. Though there applicant says that the sum was paid before the fraud was realized , . I have seen the investigation report which allegedly unearthed the ‘’fraud ‘’ and I note that it is dated 8.9.23 while the appeal was heard during the service week in December 2023 and Judgment in the appeal was delivered on 7.2.24. The applicant seems to be economical with the truth on when he got to know about the alleged fraud . I have weighed the rights of the applicant and those of respondent on this issue and I find in view of the circumstances herein the appeal will not be rendered nugatory even if the stay orders are not granted .
On the issue of substantial loss. It is not disputed that the applicant already paid a half of the decretal sum . I find that no substantial loss would be suffered by the applicant even if the application is not allowed .
In the upshot I do not find any merit in the Notice of Motion dated 11.7.24 seeking stay of execution of the lower court’s ruling dated 13.6.24 . I proceed to dismiss the application with costs to the respondent.
The record of appeal be filed and served within 30 days from today.
Mention on 9.9.24 for compliance before the Deputy Registrar .
Delivered and Signed at Kisii this 8th day of August 2024.
in the presence of:
Mr Wafula for the applicant
Mr. B. Gichana for the respondent
Oigo Court Assistant